Appellate civil case law update By Maggie L. Smith and Bryan S. Strawbridge
n April, the Indiana Supreme Court issued one civil opinion and granted transfer in two civil cases, with opinions to come at a later date. The Indiana Court of Appeals issued 14 published civil opinions. The full texts of these opinions are available via Casemaker at www. inbar.org.
SUPREME COURT DECISIONS Supreme Court rules premise liability analysis under the Restatement comes down to an issue of reasonableness: ‘What should the landowner expect will not be discovered under Section 343? And what should be obvious to the invitee under Section 343A?’ Under the “trial within a trial” doctrine, a plaintiff in a legal malpractice action must establish that an attorney’s conduct fell below the standard of care and that the plaintiff would have won the underlying action against the third party had the attorney not been negligent. The underlying action in Roumbos v. Samuel G. Vazanellis & Thiros and Stracci, PC, 95 N.E.3d 63 (Ind. 2018) (Slaughter, J.), consisted of a premises liability claim based on injuries the plaintiff suffered after she tripped over a telephone cord in a hospital room. The Supreme Court was asked to analyze, for purposes of summary judgment, what evidence is needed to establish that an injury was caused by a “known or obvious condition” sufficient to negate the causation element of a premises liability claim. The Court began by noting that, under Restatement sections 343 and 343A, “the landowner is generally not liable for injuries resulting from ‘known or obvious’ dangers on the land. But there is an exception if a reasonable landowner would anticipate
RES GESTÆ • OCTOBER 2018
the harm despite the invitee’s knowledge or the danger’s obviousness.” A condition to land is “known” if the plaintiff is aware of the condition and appreciates its danger. A condition is “obvious” if the condition and the risk “are apparent to, and would be recognized by, a reasonable person in the position of the visitor exercising ordinary perception, intelligence, and judgment.” The Court went on, explaining that the “exception” prong of the 343A analysis “asks a similar question about the obviousness of the condition, but does so from the perspective not of the invitee but of the landowner,” specifically “whether the landowner should expect that invitees will fail to discover or realize the danger, or will fail to protect themselves against it.” In either event, “whether viewed from the landowner’s perspective under Section 343 or from the invitee’s under Section 343A … it is an issue of reasonableness: What should the landowner expect will not be discovered under Section 343? And what should be obvious to the invitee under Section 343A?” Ultimately, while acknowledging that whether a risk is obvious can “sometimes” be resolved on summary judgment, the Supreme Court declared that issues of fact remained in this case, preventing resolution at this stage.
SUPREME COURT TRANSFER GRANTS • State v. Norfolk Southern Railway Company, 84 N.E.3d 1230 (Ind. Ct. App. 2017) (May, J.) (involving whether Indiana’s Blocked Crossing Statute is preempted by the federal Interstate Commerce Commission Termination Act and the Federal Railroad Safety Act), transfer granted April 12. (The Supreme Court issued its decision on transfer on Sept. 24. This decision will be summarized in a future column.)
• Gittings v. Deal, 84 N.E.3d 749 (Ind. Ct. App. 2017) (Barnes, J.) (dealing with statute of limitations involving transfer of trust assets), transfer granted April 25.
SELECTED COURT OF APPEALS DECISIONS Court of Appeals holds that preferred venue for negligence action is not Marion County when FSSA is named in declaratory judgment count by plaintiffs for limited purpose of establishing whether FSSA may have a lien on potential recovery In Scribbles, LLC v. Wedgewood by Wedgewood, 101 N.E.3d 844 (Ind. Ct. App. 2018) (Pyle, J.), trans. denied, the Court of Appeals evaluated whether Marion County may be a county of preferred venue when the Indiana Family & Social Services Administration (FSSA) was named as a defendant in an action brought in Marion County on behalf of a minor child by his family for catastrophic brain injuries allegedly sustained at the defendant daycare when all parties, save for FSSA, were Hendricks County residents. In the two-count complaint, Plaintiffs alleged negligence against the premises owner, the church that operates the daycare, the infant caregiver, and the daycare director. In their second count, Plaintiffs “explained that [the infant] was a beneficiary of the Indiana Medicaid Plan … and asked the trial court [as part of declaratory claim] to determine whether the Plan had a lien on the Plaintiffs’ recovery and, if so, the amount of the lien.” Id. at 846. Defendants each raised improper venue as an affirmative defense under Trial Rule 75 and moved to transfer venue to Hendricks County. The trial court agreed with Plaintiffs and held that “Marion County [was] a preferred venue and the Court lack[ed]
October 2018 edition of Res Gestae, the journal of the Indiana State Bar Association